Clandestine Entrant Civil Penalty Scheme means hefty penalties for hauliers

In recent months, hauliers receiving penalties from Border Force under the Clandestine Entrant Civil Penalty Scheme have been a regular feature of the trade, local and even national press. JMW’s Commercial Road Transport team is currently dealing with an influx of these cases for a range of British, Irish and continental European operators who have received substantial penalties – some involving eye-watering six-figure sums.

The Clandestine Entrant Civil Penalty Scheme was overhauled with effect from February 2023 and the penalties available to Border Force increased by a staggering 500%.

The changes included:

1. The maximum penalty for carrying clandestine entrants was increased from £2,000 to £10,000 per entrant. The driver and operator are both liable to a penalty (i.e. a maximum aggregate penalty of £20,000 per entrant) and the operator is responsible for payment of the driver’s penalty as well as their own.

2. A new penalty for failing to adequately secure a goods vehicle against unauthorised access (which includes unaccompanied trailers) was introduced with a potential maximum penalty of £6,000. The driver and operator are both liable to a penalty (i.e. a maximum aggregate penalty of £12,000) and, again, the operator is responsible for payment of the driver’s penalty as well as their own. This penalty can be imposed regardless of whether clandestine entrants have gained entry to the vehicle.

3. The only defence against penalties is that the driver was acting under duress. However, in our experience, in most scenarios this is unlikely to be the case – the driver is usually completely unaware that clandestine entrants have gained access to the vehicle. The starting point is therefore that penalties are imposed in most cases – even if you are operating an effective system to prevent the carriage of clandestine entrants. 

4. A new ‘Level of penalty: code of practice’ was introduced which Border Force must follow when considering the imposition of any penalties. The starting point is for Border Force to impose the maximum penalty available and then apply a series of discounts as may be relevant to, or appropriate in, the particular case. Such discounts include: whether the driver and/or operator have any previous penalties; whether the operator is a member of the Civil Penalty Accreditation Scheme; the driver’s and operator’s financial circumstances; and whether there has been compliance with the Carriers’ Liability Regulations 2022 in terms of operating an effective system to both adequately secure the vehicle and prevent the carriage of clandestine entrants. Border Force may also take into account any other factors considered relevant.

In practice, these changes are translating into the hefty penalties we are seeing imposed on hauliers virtually day in, day out.

The ‘Level of penalty: code of practice’ provides for a 50% discount to any penalty where the Carriers’ Liability Regulations 2022 (which require an effective system for adequately securing the vehicle and preventing the carriage of clandestine entrants) are complied with. International hauliers should therefore take the opportunity to review their systems, which should include:

- A written policy managing vehicle security and the prevention of the carriage of clandestine entrants;

- The provision of security devices (and spares) to enable drivers to adequately secure the vehicle;

- Driver checking of the vehicle and load space when the vehicle is first loaded, after each stop, and as soon as is practicable before reaching immigration control;

- Recording of those checks in writing (or using an app-based system, such as Aquarius IT’s ‘Security Check’;

- Route planning to avoid drivers stopping in areas that are known to be ‘high risk’ for clandestine entrants;

- Driver training/instruction on the system, the use of any security devices, the recording of their checks, and what to do if they suspect clandestine entrants have gained access to the vehicle;

- Ongoing monitoring/auditing to ensure the system is being operated in practice;

- Retraining and/or disciplinary action where breaches of the system are identified (regardless of whether there is Border Force involvement).

If a vehicle is found to not be adequately secured or clandestine entrants have gained access to a vehicle, the operator and driver will each receive a letter from Border Force notifying them of the incident and asking for more information about what happened to assist them in deciding whether to impose a penalty and, if so, the level of penalty.

The operator and driver will then each receive a ‘Notice of Penalty’ confirming the level of any penalty imposed (remember, the operator is liable for both). There is the right to object to and/or appeal the penalty within 28 days of the date of the ‘Notice of Penalty’, or payment of the penalty must be made within 60 days.

JMW’s Commercial Road Transport team is currently assisting numerous operators with Border Force requests for further information, objections to penalties, appeals against penalties to the county court and applications to join the Civil Penalty Accreditation Scheme. Only this week, we were successful in securing an almost 99% reduction in the level of penalty imposed.

 - This article was previoulsy published in Commercial Motor, to subscribe see the latest Commercial Motor subscription offer